Modesto Junior College Obligingly Beclowns Itself To Make A Point About Censorship

Effluvia

Free speech on American college campuses is not just threatened by speech codes. It's also threatened by colleges that put bureaucratic barriers in front of speech and attempt to restrict it to tiny "free speech zones."

The FIRE has today's example. Modesto Junior College restricts free speech. Student Robert Van Tuinen decided to make a point about it. He wanted to pass out copies of the United States Constitution in a non-violent and non-disruptive way, and he wanted to do it without applying for a permit first and "registering" what he wanted to hand out and waiting in line behind a narrowly restricted group of permitted speakers, and he wanted to do it outside of the student center, not at the school's pathetic "free speech zone."

Surely, you think Modesto Junior College is not so foolish — not to mention thuggish — to make Van Tuinen's point for him, by stopping him from handing out the Constitution on Constitution Day?

Oh, ye of little faith.

Upon arriving at that office, Van Tuinen talks with administrator Christine Serrano, who tells him that because of “a time, place, and manner,” he can only pass out literature inside the “free speech area,” which she informs him is “in front of the student center, in that little cement area.” She asks him to fill out an application and asks to photocopy his student ID. Hauling out a binder, Serrano says that she has “two people on campus right now, so you’d have to wait until either the 20th, 27th, or you can go into October.” Van Tuinen protests that he wants to pass out the Constitution on Constitution Day, at which point Serrano dismissively tells him “you really don’t need to keep going on.”

Such is the bureaucratic arrogance of college administrators: they will openly use phrases like "that little cement area," not particularly caring that it illuminates how they view speech and how they wish to marginalize it.

As in most such cases, the school's invocation of "time, place, and manner" language is facile and misleading. The First Amendment does permit reasonable time, place, and manner restrictions. But that doctrine does not permit broad restrictions on non-disruptive activities like leafleting, particularly when they are on traditional public fora like sidewalks, and particularly when it results in limiting speech to a few people per month in a tiny concrete speech ghetto. The FIRE explains in their appropriately scathing letter to Modesto Junior College.

Van Tuinen set up a blindingly obvious demonstration of the unprincipled nature of the Modesto Junior College's policy. Modesto Junior College's administrators fell for it.

They didn't fall for it because they're stupid. They fell for it because they're arrogant. They fell for it — if that's the right phrase — because they don't care about free speech.

Last 5 posts by Ken White

98 Comments

91 Comments

  1. Craig  •  Sep 19, 2013 @9:54 am

    Well, I think you can be arrogant and stupid at the same time.

  2. NI  •  Sep 19, 2013 @9:59 am

    His mistake was in asking permission in the first place. Asking permission implies that the college has the right to say no. He should have just started passing them out.

  3. Ken White  •  Sep 19, 2013 @9:59 am

    NI: did you read the article?

  4. david taylor  •  Sep 19, 2013 @10:01 am

    I'd have serious misgivings about going to a university/college where the students, as a group, tend to not express their opinions, and the lack of free speech going essentially unchecked by the students could be interpreted as a lack of the differi g viewpoints that makes the college experience so enriching.

  5. whheydt  •  Sep 19, 2013 @10:07 am

    Modesto is not exactly a bastion of progressive thought.

  6. Pub Editor  •  Sep 19, 2013 @10:21 am

    One would think that the camera (among other factors) would have tipped off the administrators to the fact that they were being set up for a fall. I actually find it a little painful to watch someone walk into a trap, apparently oblivious, especially what strikes us as an obvious trap.

  7. solaric  •  Sep 19, 2013 @10:22 am

    Ken, it might have been useful to highlight exactly why this issue is more concerning then merely the bad example it sets for college students and the general contrariness to the spirit of education in a democracy in general. "Time, place, and manner" (and 1A itself) wouldn't even be relevant for a wholly private entity, which on their own property may set their own policies. But Modesto Junior College is part of the California Community Colleges System, and thus unless I'm mistaken funded heavily by the State. In that context it's bad in many ways, not merely as an expression of state power but because the CCCS itself appears to pretty strongly support student government and participation. The entire foundational legislation seems pretty progressive, even beyond the boundaries of the 1st Amendment, which simply makes such repression all the worse (even though amongst over 100 colleges in the system some variation is probably inevitable).

    I applaud his efforts and I hope this becomes a big black eye for the school administration. If that happens and change happens as a result of students standing up and other citizens getting involved, then the ultimate lesson would be a truly valuable one: that freedom is not static, but a constant struggle, yet at the same time it's a struggle that can go well.

  8. xbradtc  •  Sep 19, 2013 @10:22 am

    It's not just that they're arrogant. It's that they're convinced the school exists to support them, not provide an education to its customers.

  9. cdru  •  Sep 19, 2013 @10:32 am

    Robert Van Tuinen would probably appreciate it if you stop calling him Val.

  10. Kilroy  •  Sep 19, 2013 @10:33 am

    Ken, are you crazy? What do you think the Modesto administrators are going to do to your twitter account when they find out about this post?

  11. Anonymous  •  Sep 19, 2013 @10:34 am

    My school has an almost identical policy to MJC: One must pre-register with the administration, and then speech is limited to a relatively small area. The area may only be used during daylight hours.
    Is it clearly established that such a policy is unconstitutional? If someone challenged it, is it a slam-dunk case, or one that could bankrupt the challenger and possibly result in a loss?

  12. Ken White  •  Sep 19, 2013 @10:35 am

    My people have no tradition of proofreading. Check your privilege, cdru.

  13. Shane  •  Sep 19, 2013 @10:59 am

    @Ken

    I agree with your thinking about the limitation of speech in a clearly publicly funded institution, but like a 0 calorie soft drink I am left with a disconcerting after taste. What if, Modesto or any school were to remove get on board with the constitution (which I think they should), that leaves the school open to the abortion purists and the likes of the Westboro Baptist Church all across their campus. I know nothing in life is free and maybe I am just thinking in the extreme, but how might these things play out. What might smart individuals do to counter this, it seems to me that the disease is less dangerous than the cure.

    Don't get my wrong my first instinct is to say, bah stupid government involved in schools and this is the twisted crap that we get, but alas here we are. How to deal with it.

    One more note, this kinda reminds me of the guys that are open carrying, as a gesture of their 2nd amendment rights, but scaring the bejesus out of the faint hearted. I am a strong supporter of the 2nd amendment but I find these demonstrations to be counter productive … but, but, but … and bear arms.

    Enlightenment please, at your leisure of course (or not at all as you deem necessary).

  14. cdru  •  Sep 19, 2013 @11:02 am

    Is there a little tiny concrete free speech area where I need to check it at?

  15. Sam  •  Sep 19, 2013 @11:07 am

    that leaves the school open to the abortion purists and the likes of the Westboro Baptist Church all across their campus.

    I attended the University of Oklahoma for both undergraduate and graduate studies. I don't recall ever seeing WBC, but there was always a crazy-preacher-guy on the South Oval and I remember at least one instance of an anti-abortion group setting up giant, disturbing images on campus.

    I didn't particularly care for those demonstrations, but they were easily avoidable if I walked 5 minutes out of my way. Furthermore, there were almost always those who felt compelled to argue. It wasn't consistently edifying, but no dialogue would have taken place if the University had restrictions on speech.

    Listening to speech that you might find offensive need not be a negative experience, in my opinion; there's always something to be learned, even if it's just how to deal with a troll.

  16. Ken in NH  •  Sep 19, 2013 @11:08 am

    Your people, Ken?!? I thought you were of the lawyer tribe not the journalist ethnicity.

  17. Shane  •  Sep 19, 2013 @11:08 am

    @cdru

    Is there a little tiny concrete free speech area where I need to check it at?

    No, but you might want to understand that free speech doesn't come without consequences. So say what you want, but don't be surprised when others say what they want.

  18. Shane  •  Sep 19, 2013 @11:10 am

    @Sam

    Are there free speech zones there?

  19. Dion starfire  •  Sep 19, 2013 @11:11 am

    This is a great example of why FIRE and organizations like it are not only beneficial, but necessary to any democratic or semi-democratic society.

    It's a universal (except for the repressive, entitled types) example of the usefulness of lawyers. We may hate it when y'all get in the way of mob rule, but we're grateful somebody is standing up for the values we're most proud of. After all, most Americans are trained into the 'I could be next' mentality about re/oppression.

    Of course, that training is it's own form of oppression (beneficial, though it may be). *runs away from the tangent bomb*.

  20. JT  •  Sep 19, 2013 @11:15 am

    Being employed at a university myself, I know that administrative (in)action is often bred more through exigency than arrogance. It's easier just to follow the rules and avoid conflict. Not any less excusable, though.

  21. Owen  •  Sep 19, 2013 @11:15 am

    Not being an American, I have some questions on constitutionality: specifically, does the 1st Amendment restrict non-government actors (such as some colleges and universities) from imposing restrictions on speech? And does Modesto Junior College's position as a publicly-funded (does this imply state-funded?) institution make a difference?

  22. JD  •  Sep 19, 2013 @11:20 am

    @Shane

    It wouldn't really open up to pro-life and Westboro demonstrations because those are generally high profile, highly disruptive events that are actually covered under correct application of the Time, Manner, Place restrictions.

  23. Ken White  •  Sep 19, 2013 @11:20 am

    @Owen:

    Public (government run and funded) universities are government actors, as are their employees. If you are talking about private universities, the restrictions on speech are only social, contractual, and in some cases statutory (like California's Leonard's Law). Yes, Modesto's public college status makes it a state actor subject to the First Amendment. The college context might be somewhat different than the streetcorner context, leading to slightly different application of First Amendment law, but it's a First Amendment issue.

  24. JT  •  Sep 19, 2013 @11:21 am

    Also, on our campus, concrete is where free speech is limited. There are sidewalk chalk rules (for instance, no "candidate bashing" for homecoming king and queen) and our campus PD sometimes cracks down on local bars that advertise drink specials via sidewalk chalk.

  25. jb  •  Sep 19, 2013 @11:22 am

    Owen,
    As long as the non-government actors are imposing those restrictions on their private property, they're not restricted by the 1st amendment. Yes, the publicly-funded nature makes a difference.

    So no one, government representative or private citizen, can come up to you on the street (public place) and make you cease protected speech, and there is nowhere that a government representative (public employee) can make you cease protected speech. But a private citizen, in a private place, can make you cease protected speech just fine (although civil rights and anti-discrimination laws drastically complicate that scenario, just as national security laws and confusing jurisprudence complicate the others).

  26. naught_for_naught  •  Sep 19, 2013 @11:23 am

    Ken, you get highest marks for exemplary word play, minting the term, beclown. Bravo, sir.

  27. Lizard  •  Sep 19, 2013 @11:24 am

    A random thought (Table IV-C, d100) has occurred to me. Both conservatives and liberals, depending on whether its their ox or their tofu being gored or lightly braised, tend to have some stock reply to the effect of "Well, restrictions are OK, even if they *effectively* prevent all speech, as long as it's not a literal, complete, ban."

    To conservatives: So, laws that require a week long, government certified, firearms safety training course (for each gun purchased, no matter how many times you've gone through the same course, you pay the costs of the course, let's say $1000.00/day), the purchase of a minimum of $100,000.00 worth of insurance to cover damages if your gun is stolen or used by someone other than you (if you can't find an insurer, or can't afford their rates, sucks to be you!), and mandatory tracking of each bullet purchased and fired, filed (by registered letter, dead tree, three copies, no online filing) within 48 hours of firing (if not fired at a human for any reason (lethally or not, hit or miss) in which case, you must contact the police *immediately* if possible, and take no actions other than finding a way to contact the police if not immediately possible), would be fine, because this isn't a "ban" on gun ownership?

    To liberals: So, a maximum of one clinic licensed to perform abortions per state, no abortions more than 30 days after the start of pregnancy, a mandatory 48 hour waiting period following a 6 hour 'counseling' session with a 'life facilitator' who is charged with trying to convince you not to abort, invasive ultrasound, and a posting of name, age, home address, and alleged father of the child online and in all local papers would be fine, since this isn't a "ban" on abortion? (Oh, and no use of any kind of medicare, medicaid, ACA programs, etc.)

    (Now, I'm personally pro-gun and pro-choice, as well pro-free-speech, so I tend to be sensitive to any version of the tactic of "We're just making some simple, common-sense, regulations for the greater good!" as applied to lots of different things. When such "reasonable" regulations are promoted almost exclusively by people who want to eliminate the thing being regulated entirely, but are prevented from doing so directly, the odds of them being "reasonable" dwindle to near-null. Obviously, someone at Modesto felt a "free speech zone" was "reasonable". That word doesn't mean what they think it means.)

    I'd like to plead, on behalf of Ken and sanity in general, that people do not focus on my specific examples and what they consider "reasonable" for those rights. I'm trying to get people to think of how their "reasonable" restrictions on things THEY don't like might look to people who DO like them. "Do not hate a man until you have walked a mile in his shoes, for then you are a mile away, and he doesn't have shoes and will have a hard time chasing you."

  28. RogerX  •  Sep 19, 2013 @11:25 am

    that leaves the school open to the abortion purists and the likes of the Westboro Baptist Church all across their campus.

    Exactly. And that is exactly what you want, especially at a college campus. You want the shittiest ideas possible to be aired, so that they are held up for scrutiny and found to be lacking. That is how the marketplace of ideas should work. A whole lot of undigestable chaff, and some wonderful, delicious wheat (gluten included) for all to enjoy.

  29. Sam  •  Sep 19, 2013 @11:27 am

    @Shane

    I don't think there were zones, though that's an anecdotal observation. I never had direct contact with anyone organizing a protest or something similar.

    In any case, the demonstrations I saw mostly took place on the North and South Ovals, so those might have been 'zones'. However, they are also the most trafficked areas on campus and no one was ever confined to tiny zones.

    So, maybe? Also, I haven't been a student there since 2010 so my information is dated.

  30. Erwin  •  Sep 19, 2013 @11:32 am

    …really stupid question…but…is there a point where free speech becomes a traffic issue? I can sort of see a problem if you have enough 'free speakers' that it is hard to get around on the campus, or possibly enough to block emergency exits. We didn't really have this problem that often on campus, but there were some days where the graduate student union blocked pretty effectively. Albeit, possibly because most of the protesters were an attractive hazard.

    …and I can imagine an argument involving designated lanes for foot traffic. That, proceeding along the natural inclinations of bureaucracy, resulted in cordoning off of initially generous areas and eventually a wait-list for a concrete, 1 m^2 block.

    –Erwin

  31. Lizard  •  Sep 19, 2013 @11:33 am

    As a final note, even if a university has a right (because they are not government funded, say) to make such restrictions — it doesn't make it right to do, and as we've all spent 3000 or so posts discussing, public disapproval and condemnation of actions which are legal, but which at least some consider immoral or unethical, is a fundamental tool of social change. And, yes, context and circumstances matter. I believe it's more *morally* acceptable for Ken to have stricter regulation of what speech is allowed on his blog than it is for a private college campus. I will be much more critical of the college than of Ken. Both have an equal *legal* right, but not all exercises of that right have equal moral and ethical standing. As to my reasoning why one is more acceptable to me than the other, honestly, anyone who can't intuit the hierarchy and weighting of conflicting values and ideals I would use to reach that conclusion with about a minute's thought probably won't understand it no matter how hard I try, and I'm not particularly interested, at this moment, in trying to teach another pig to sing. You can freely disagree with how I order and weigh my values all you like, but please don't act like it's an incomprehensible and alien idea.

  32. Owen  •  Sep 19, 2013 @11:38 am

    @Ken

    Thanks, that helps me understand the context a bit better.

  33. Sam  •  Sep 19, 2013 @11:49 am

    is there a point where free speech becomes a traffic issue?

    I'm pretty sure this was the exact situation that led to the pepperspray cop. They were trying to remove student protesters.

  34. David  •  Sep 19, 2013 @11:57 am

    @naught_for_naught

    Ken, you get highest marks for exemplary word play, minting the term, beclown. Bravo, sir.

    Beclown goes back at least to the 17th century and has seen new life in the blogosphere since about 2007, mostly at the hands of Instapundit, who seems to have picked it up from Tim Blair.

  35. Justin  •  Sep 19, 2013 @12:06 pm

    I'm not sure I buy into the idea that the administrators who come up with or enforce these free speech regulations are doing so because of thuggery or arrogance. I think, most of the time, it's much more passive then that–they come up with this BS through ignorance and laziness.

  36. Vermin  •  Sep 19, 2013 @12:09 pm

    Shane,

    I recently graduated from Washburn Law. The Westborrow Baptists did protest on campus during the ceremony.

  37. Renee Marie Jones  •  Sep 19, 2013 @12:24 pm

    "The First Amendment does permit reasonable time, place, and manner restrictions."

    I beg to differ. Courts and legislatures may permit such restrictions, but the first amendment itself grants no restrictions.

  38. En Passant  •  Sep 19, 2013 @12:24 pm

    Justin wrote Sep 19, 2013 @12:06 pm:

    I think, most of the time, it's much more passive then that–they come up with this BS through ignorance and laziness.
    I think a reasonable test to distinguish ignorance and laziness from thuggery and malice is whether the administrators or the institution actually raises a defense in any court challenge to overturn the policy.

    If no defense offered, then ignorance and laziness drove the policy making.

    If a defense is offered, then the policy was intentional and the institution has not been lazy in defending it.

  39. Dan Weber  •  Sep 19, 2013 @12:29 pm

    Now I wonder: can public colleges block non-students from their property? If some offensive church comes to protest, can the school block them? Would it need a content-neutral policy that it blocks all non-students from protesting?

    I assume that students can hold and attend pro-life and pro-choice demonstrations (as an example) all they want.

  40. Zack  •  Sep 19, 2013 @12:33 pm

    @Renee Marie Jones: Restrictions are implicit in the first amendment. "Congress shall make no law… abridging the freedom of speech, or of the press" implies that "freedom of speech" is a definite concept with boundaries. Implicit in that definition is that congress CAN make law (pursuant to whatever other restrictions its power is under) abridging the right to perform activities that do not fall under the "freedom of speech". The 14th amendment means that this concept also applies to any institution acting under the power of the states, as well.

    The fact that restrictions are implicit are a big part of the reason for the Federalist opposition to the existence of the Bill of Rights- they were afraid that the amendments would be (quite reasonably) lead to implicitly permit the restriction by Congress of whatever was not explicitly listed (which itself was the reason for the 9th and 10th amendments, which John Marshall effectively nullified in McCulloch v Maryland, which is quite possibly the worst piece of American law in existence, apart from Buck V Bell or Plessy V Ferguson.)

  41. pillsy  •  Sep 19, 2013 @12:36 pm

    "Oh my God, if we don't clamp down on free speech on campus, people will be able to advocate all sorts of crazy things on campus!" strikes me as the world's funniest slippery slope.

  42. C. S. P. Schofield  •  Sep 19, 2013 @12:42 pm

    whheydt,

    "Modesto is not exactly a bastion of progressive thought."

    Funny. Based on how the college administration is acting, I would have expected at l;east this campus to be wall to wall Progressives.

  43. JD  •  Sep 19, 2013 @12:42 pm

    @ Renee

    Well, the Constitution also doesn't say that I can't stab you in the eye with a rusty spork. However, Courts and Legislatures have crafted Constitutionally compliant laws and regulations to prevent that type of gore.

  44. Clark  •  Sep 19, 2013 @12:51 pm

    @Shane:

    if, Modesto or any school were to remove get on board with the constitution (which I think they should), that leaves the school open to the abortion purists

    It's worse than that – if we allowed protestors to say that "X are people and deserve to have their rights respected", they might not just stop at values of X = 8 month old fetuses – they might agitate for blacks, Jews, women, etc. Who knows where it would end?

    We might end up with people showing pictures of slaves with backs bloody from whippings, or pictures of Rawanda genocide.

    We can't have people confronted with uncomfortable truths when they're trying to get an education.

    @pillsy:

    "Oh my God, if we don't clamp down on free speech on campus, people will be able to advocate all sorts of crazy things on campus!" strikes me as the world's funniest slippery slope.

    Indeed.

  45. Lizard  •  Sep 19, 2013 @12:52 pm

    It's worth noting that many restrictions on speech were present in the earliest days of America, carried over from common law, such as libel, slander, and so on. While the Alien & Sedition Act was rapidly tossed out, it does indicate there was never a completely absolutist view of the 1A — if anything "original intent" was more restrictive than current interpretation. Only really since WW2 has freedom of speech been generally expanded and more speech considered "protected".

    To some extent, appeals to "original intent" can be bogus, because the Constitution's ability to be modified as needed (the amendment process itself) tells us the original intent of the Constitution was that it not be bound by original intent. :) Likewise, terms such as "cruel and unusual" or "excessive" are subjective and cultural; it's pretty ridiculous to argue that when deciding what might be "cruel" punishment, we should look to how jails were run in 1776 and retain that as our standard.

    Anyone arguing that there is no such thing as a "reasonable" time, place, and manner restriction is arguing that I should be allowed to stand outside your window at 2 AM with a bullhorn and read selections from porno movie scripts (until I get an empirical lesson in the Second Amendment from your neighbors, at any rate). "Reasonable", like a lot of legal terms, has fuzzy borders, but there's a lot of clear space within the fuzz, and a lot of clear space outside it, where very little debate is necessary. "2 AM bullhorn porno script readings" are as outside the borders of "reasonable" as Modesto Junior College's concrete block. I'm not sure what's useful about arguing that either a)These restrictions are NOT unreasonable, or b)There's no such thing as a reasonable restriction, period. Neither argument really has substance to it. Modesto needs to argue that their restrictions are a)content neutral, b)serve a compelling purpose, and c)are narrowly tailored to achieve that end. They may pass "a". They are extremely weak on "b", assuming the "purpose" is something like "maintain an environment conducive to education" or some such, because the degree of harm done to education by permitting greater freedom of speech is extremely trivial compared to the harm done to the rights of the students to speak, and fail utterly on "c", since there are many other ways to achieve the putative ends of "b" that are far narrower and hinder much less speech.

    So, not too much to debate, really, unless someone just gets off on trying to defend mindless bureaucracy for the fun of it. If so, well, it's your life.

  46. Clark  •  Sep 19, 2013 @1:09 pm

    @JD

    the Constitution also doesn't say that I can't stab you in the eye with a rusty spork.

    Of course not.

    The Constitution is not a check on individual actions; it is a check on government power.

    Well, theoretically, at least.

    #secret_laws
    #Gitmo
    #drone_murders_of_US_citizens
    #asset_forfeiture
    #national_security_letters
    #rendition

  47. Kris  •  Sep 19, 2013 @1:22 pm

    "that leaves the school open to the abortion purists and the likes of the Westboro Baptist Church all across their campus."

    I'm not buying the "protect us from Westboro" crap as a defense to free speech zones. I went to law school a half an hour from their compound and they were a regular presence. But, it also encouraged speech from the students in response. When they showed up to protest a drag show, a student decided to stand near them and solicit donations for Planned Parenthood, one of their other favorite targets. He raised somewhere around $1,000 – if my memory serves me. More recently, the Equality House now across the street from their compound has been doing amazing things. Objectionable speech can be a catalyst for more positive, constructive speech. If we corral the speech because we might find it objectionable, aren't we corraling and impeding the opportunity to respond?

  48. Shane  •  Sep 19, 2013 @1:23 pm

    @Clark

    We can't have people confronted with uncomfortable truths when they're trying to get an education.

    I wasn't coming from the little buggers being confronted with ideas that might be counter to what they are being taught in the classroom, heaven forbid it should come to that, the two examples that I chose were of the disruptive sort. As in, 20 screaming protesters with bullhorns walking around the campus disrupting classes etc … also if zones are not established then any protester can walk in on a class holding a sign with an aborted fetus or stand in the hall with said sign. I was coming from a disruption approach vs. keeping the chillens from scary ideas.

  49. Jesse from Tulsa  •  Sep 19, 2013 @1:44 pm

    Free speech on campus is essential. I learned a TON from listening to wackos on my campus. The more someone wants to tell you about their God, the less you should listen. Anarchists are clueless. Conspiracy theorists have too much time on their hands. Stoners don't pose a real threat to society. Anyone with a picture of Che on their shirt isn't worth talking to. Every generation has someone who needs to be "freed" somewhere for some reason.

    All sorts of fun.

    If we don't let them say it in public, how are we supposed to know they are crazy?

  50. Dan Weber  •  Sep 19, 2013 @1:44 pm

    The Constitution is not a check on individual actions; it is a check on government power.

    Hmm, isn't the libertarian POV that the Constitution is what grants government its power?

  51. NotThisButThat  •  Sep 19, 2013 @1:56 pm

    @Shane

    As in, 20 screaming protesters with bullhorns walking around the campus disrupting classes etc … also if zones are not established then any protester can walk in on a class holding a sign with an aborted fetus or stand in the hall with said sign.

    That is why we have public nuisance and disorderly conduct laws. You have the right to say whatever you want. You do not have the right to disrupt others while expressing your actual rights.

  52. Steve  •  Sep 19, 2013 @2:06 pm

    Ouch, that hurts. I went to MJC. It has certainly come down since I went there.

  53. NRG  •  Sep 19, 2013 @2:14 pm

    What?

    These jackasses don't understand free speech ain't free if it has time/quantity/spacial limitation? Really??

    Did they really say that this campus only allows free speech by two individuals at a time, (apparently) only on fridays and only in the small concrete area? Really?

    And they dont get it that speakers #3+ on fridays have no free speech? That nobody gets free speech (apparently) the other six days of the week.

    Those folks are not qualified to work at a public institution of higher learning (even in Modesto) if they do not understand the meaning of the words impeding, infringing, interfering or prohibiting.

    As an aside, the protestor (kudos) need to start using those words in his interactions with authority.

  54. Xenocles  •  Sep 19, 2013 @2:15 pm

    As a layman, my take on time/place/manner restrictions is that they -both individually and in the aggregate – should be exceptions to the norm of free speech. As applied here that would mean that the college might bar protests in a lecture hall but would not be able to limit them to a small out-of-the-way zone.

    It is also my non-technical understanding that speech is separable from other conduct in ways not related to the content of the speech. I could be barred from loitering in the street, for example, even if I am standing there to protest something. Thus traffic obstruction et al. need not be concerns for this discussion.

  55. jim  •  Sep 19, 2013 @3:31 pm

    It's like whatever the wit said about putting things in an email you want to keep secret, don't do it. If you have something that needs to be handed out in a "free speech zone" (particularly the constitution), you shouldn't be saying it. They'll put you on a list if you do.

  56. Jerry  •  Sep 19, 2013 @4:51 pm

    While the First Amendment may not apply directly to a private college, we do have a bunch of law finding ways to construe private colleges to be government actors. If the college receives Federal funding – e.g., for research; most do to some degree – they might be seen as acting for the government. If any of the college's students are paying their way through school using government grants – they school might be seen as a government actor.

    The cases in which this has come up – which I recall only from newspaper accounts at the time – was from applying various government regulations on sports (e.g., Title 9) to private colleges. I found one recent decision here: http://docs.justia.com/cases/federal/district-courts/pennsylvania/pawdce/2:2009cv01169/93806/29/

    I don't now how broad the decisions in this direction are. Perhaps the experts here can comment.
    — Jerry

  57. Al Pastor  •  Sep 19, 2013 @5:23 pm

    Man, I thought this was ancient history (Berkeley Free Speech Movement). Modesto isn't really all that far from Berkeley in space, but apparently 50 years apart in time.

  58. Leonardo  •  Sep 19, 2013 @5:24 pm

    Is Modesto JC a privately owned college or is it part of a County or State college system? I suppose that would make a difference as far as them getting away with such a ludicrous anti-intellectual policy.

  59. Sami  •  Sep 19, 2013 @5:27 pm

    It's a bizarre paradox of human nature, I think, that the more free speech is enshrined as an important issue in a society, the heavier the battle over it seems to get.

    In America free speech is enshrined in the Constitution and is a Big Deal, and you get… this stuff, and constant battles over it.

    In Britain, where the constitution is unwritten, the government tried to institute a Free Speech Zone, and I believe got a sort of resounding, "oh, fuck off" reaction from the public, and the attempt sort of fell apart.

    In Australia, we have a written Constitution, but it doesn't contain any kind of Bill of Rights stuff – but we have freedom of speech anyway, and if my university had tried to institute a "free speech area", the instant result would have been the campus getting plastered with posters and leaflets from end to end.

    (In fairness, I should admit that the university did restrict *putting up posters* to noticeboards and rotundas dotted across campus, for the most part, but that was for aesthetic purposes. You could hand out leaflets wherever. And of course, you couldn't do anything that involved shouting near classrooms or lecture halls during classes, because it was disruptive. On the other hand, if you wanted to make a political announcement *to classes*, you were allowed to do it from the podium so long as you came in before the lecture started, and were brief.)

    There's some kind of self-defeating human nature thing going, I think.

  60. James Pollock  •  Sep 19, 2013 @5:39 pm

    " You do not have the right to disrupt others while expressing your actual rights."
    Thus, time-place-manner restrictions.

  61. AlphaCentauri  •  Sep 19, 2013 @5:40 pm

    I wonder if any of this silliness started as an attempt to deal with the laws that require schools to allow military recruiters to approach students on campus and gain access to their contact information? If no outside groups are allowed on campus, they don't have to allow the military recruiters, either. There have been cases limiting how much access the recruiters must be permitted, but when the laws first went into affect, the military didn't recognize those limitations.

  62. Lizard  •  Sep 19, 2013 @6:22 pm

    I wouldn't mention Australia as a good example of why you don't need explicit laws protecting free speech. https://en.wikipedia.org/wiki/Censorship_in_Australia and https://en.wikipedia.org/wiki/Hate_speech_laws_in_Australia .

  63. Clark  •  Sep 19, 2013 @6:25 pm

    @Jesse from Tulsa

    Anyone with a picture of Che on their shirt isn't worth talking to.

    I saw a kid in a Starbucks once in a Che shirt. I told him the shirt was pretty cool – and did it mean that he endorsed Che's racism against blacks and hatred of homosexuals. He protested that it wasn't true. I said that it was, and he could look it up. He ended up de facto quoting the Big Lebowski: "that's, like, your opinion man"

  64. Clark  •  Sep 19, 2013 @6:25 pm

    @Dan Weber

    The Constitution is not a check on individual actions; it is a check on government power.

    Hmm, isn't the libertarian POV that the Constitution is what grants government its power?

    Yes. The failure to delegate power X means that government is restricted from power X. On the other hand, there's a federalist / anti-federalist muddle, where the mere limitations of, say, Article I section 8 were not seen as sufficient by everyone, so the Bill of Rights acted to underscore it.

    …and that sort of worked. For a while.

  65. Clark  •  Sep 19, 2013 @6:25 pm

    @Shane

    @Clark

    We can't have people confronted with uncomfortable truths when they're trying to get an education.

    [ anti-abortion was chosen as an example because ] 20 screaming protesters with bullhorns walking around the campus disrupting classes etc … also if zones are not established then any protester can walk in on a class holding a sign with an aborted fetus or stand in the hall with said sign. I was coming from a disruption approach vs. keeping the chillens from scary ideas.

    I'm pretty sure that "disturbing the peace" entirely takes care of those problem with out any need to set up "free speech zones".

    In Massachusetts the law reads

    persons who with offensive and disorderly acts or language accost or annoy persons … wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200, or by both such fine and imprisonment.

    Ditch your "free speech zones", and arrest anyone who engages in disorderly acts. There are already standards for what "disorderly acts" means.

    Bullhorns, disrupting classes, blocking hallways: disorderly.

    Handing out flyers, holding signs, asking people "have you heard the Good News?" : not disorderly.

  66. Clark  •  Sep 19, 2013 @6:29 pm

    @Sami

    It's a bizarre paradox of human nature, I think, that the more free speech is enshrined as an important issue in a society, the heavier the battle over it seems to get.

    In America free speech is enshrined in the Constitution and is a Big Deal, and you get… this stuff, and constant battles over it.

    In Britain, where the constitution is unwritten, the government tried to institute a Free Speech Zone, and I believe got a sort of resounding, "oh, fuck off" reaction from the public, and the attempt sort of fell apart.

    I disagree. In Western countries with out guarantees of free speech speech gets repressed much more than it does in the US, and people go to jail for stating their opinions.

  67. Asher  •  Sep 19, 2013 @6:35 pm

    Bah, free speech is dead. What you're talking about is just a rotting corpse.

  68. Matthew  •  Sep 19, 2013 @7:02 pm

    Free speech is purely an academic matter at this point. Free speech does not mean a god damn thing in run-of-the-mill petty offense, misdemeanor, and felony cases. The only people who get to take advantage of 1A are powerful corporations, wealthy political groups, and the lucky person whose case's facts are so bad that some federal court of appeals can't possibly let the ruling stand.

  69. Steve Brecher  •  Sep 19, 2013 @7:26 pm

    Does the First Amendment's restrictions on Congressional legislation also restrict Modesto Junior College rulemaking?

  70. Lizard  •  Sep 19, 2013 @7:38 pm

    Some examples of the common, everyday, run-of-the-mill felonies people are jailed for that ought to not be crimes under existing 1A precedents? Maybe obscenity cases, but prosecutions for obscenity are rare, and generally targeted at producers, not average citizens. As much as I disagree with the current state of patent and copyright laws and think significant reform is in order, such laws are not, in themselves, violations of the First Amendment. There's a few cases where people are prosecuted for "threats" that clearly don't reach the necessary level of seriousness, but I have not seen that these are extraordinarily common, which doesn't make them right or acceptable, but you seem to be implying that people are routinely jailed for acts of pure speech in such a way as to render the principle moot. I'd like some more examples — ideally statistical, not anecdotal, because given the vast number of criminal cases prosecuted each day, fishing out a few anecdotes about anything is not difficult. You're claiming a broad trend of acts which are normally considered protected speech under current 1A precedents being prosecuted as felonies. If you want to claim free speech is dead, show me the corpse.

  71. Lizard  •  Sep 19, 2013 @7:38 pm

    @Steve: Your question has been answered several times in this thread.

  72. barry  •  Sep 19, 2013 @8:25 pm

    I was looking up some stuff about freedom of association on Wikipedia for a comment I never got round to making in another thread (about the suggestions for an anti-mobbing tort). I had always assumed the right to free speech and the right to free association were independent rights, that it was possible to have one without the other. And if you add the right to free speech to the right to free association (and throw in the right to bear pitchforks), you have the right to join/form an angry mob and march on the castle where the monster lives (assuming public roads).

    In America free speech is enshrined in the Constitution and is a Big Deal

    But free speech in America is such a big deal that many other otherwise fundamental rights derive from it. eg in the Wikipedia entry for Freedom of association it says (under 'United States Constitution'):

    the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama that the freedom of association is an essential part of the Freedom of Speech because, in many cases, people can engage in effective speech only when they join with others

    The odd thing here is that it looks likethe right of speech has somehow bootstapped itself up to a right of effective speech.

    A right to be heard is like a compulsion for other people to listen (I would find that very annoying). I do not believe there is any 'right to effective speech'. Did Wikipedia get this wrong, or did the Supreme Court by trying to hammer together a makeshift fix for an oversight in the constitution?

  73. Rob  •  Sep 19, 2013 @8:43 pm

    Clark • Sep 19, 2013 @6:25 pm
    I saw a kid in a Starbucks once in a Che shirt. I told him the shirt was pretty cool – and did it mean that he endorsed Che's racism against blacks and hatred of homosexuals. He protested that it wasn't true. I said that it was, and he could look it up. He ended up de facto quoting the Big Lebowski: "that's, like, your opinion man"

    As bad as Che was, though, it's a bit hard to get upset about the t-shirts. He's probably spinning in his grave at the thought that a bunch of capitalists are getting filthy rich selling his image to a bunch of bourgeoisie idiots.

  74. Lizard  •  Sep 19, 2013 @8:55 pm

    @Rob: To quote myself, "The Revolution will be merchandized."

    The greatest proof of the superiority of capitalism over other economic systems is that capitalism has turned anti-capitalism into a marketing gimmick.

    "The capitalists will sell us the rope with which we will hang them", said, I think, Lenin ("Quotes on the Internet are often wrongly attributed." (Abraham Lincoln)). "But, you know, it's really good rope… at a great price… so many uses, too… maybe we shouldn't hang the capitalists yet… I mean, we may need more rope… and hey, look, if we buy 50' of rope, we get a 10' pole free! That's a good deal. Definitely, don't hang them yet. Soon. Very soon. Hey, what's the price for iron spikes? 12 for the price of 10? Oh, that's good…"

  75. Shane  •  Sep 19, 2013 @10:46 pm

    @Clark

    Ditch your "free speech zones", and arrest anyone who engages in disorderly acts. There are already standards for what "disorderly acts" means.

    Bullhorns, disrupting classes, blocking hallways: disorderly.

    Handing out flyers, holding signs, asking people "have you heard the Good News?" : not disorderly.

    Thank you @Clark for posting, I wasn't sure how that was dealt with and it seems that the laws were directed at disorderly behaviour, but got hijacked by administrators to mean "not if we don't like it".

  76. Jon  •  Sep 19, 2013 @11:10 pm

    It's probably predictable, but I just searched MJC's web site, and this was the result:

    Your search – "free speech" – did not match any documents.
    No pages were found containing ""free speech"".

  77. Kirk Parker  •  Sep 19, 2013 @11:33 pm

    The FIRE piece ends by saying, "Every single person at Modesto responsible for enforcing this policy should have known better.”

    Actually, every single person responsible for creating and enforcing this policy need to lose their f'n job. Let them make ends meet by being a Walmart greetoe or something…

  78. JTM  •  Sep 19, 2013 @11:44 pm

    @Jerry

    Receiving federal funding doesn't turn private entities into government entities. What it does is subject private entities to government regulations that otherwise wouldn't apply to them.

    The federal government's powers are, in theory, restricted to those enumerated in the Constitution. One of the ways that the government has found to circumvent those limitations is to attach conditions to federal funding.

    For example, the federal government can't directly force states to set a legal drinking age. But the federal government can withhold federal highway funds from states that don't set the legal drinking age to 21. As a result, you're not going to find a lot of states with a lower drinking age. Similarly, hospitals aren't required to accept Medicare patients, but if they do, they have to comply with the federal Medicare regulations, many of which go far beyond what the government could directly impose if the hospitals didn't receive federal funding.

    In some cases, the government uses federal funding to coerce behaviors that it could arguably regulate under its constitutional powers, because it's easier to do. If the government uses federal funding as a tool, it doesn't even have to have the argument about whether the legislation is constitutional under the Interstate Commerce Clause or the Necessary and Proper Clause or whatnot.

    In the case that you cited, both Title IX and the Rehabilitation Act impose restrictions on private entities that receive federal funding. Since that college in that case received federal funding, it was required to comply with Title IX (gender anti-discrimination) and the Rehabilitation Act (disability anti-discrimination).

    To my knowledge, the only time a private actor can be deemed to be a government actor is when the government contracts out or delegates its authority to private actors. The government cannot, for example, get around the Fourth and Fifth Amendments to the Constitution by outsourcing police duties to a private security agency.

  79. david  •  Sep 20, 2013 @3:32 am

    @ Lizard – did you actually read the two articles you linked? The censorship article was about film and video game classification. Sure, a couple of really shit movies were banned for basically just being really bad movies ie Baise-Moi and Ken Park, for sexualised violence; while Korean film Old Boy, which is about forced revenge pedophilia and has a scene of an octopus being eaten alive, is widely available (I bought a copy at K-Mart!)
    The other one is about current hate speech laws, which have not resulted in a single successful prosecution (most haven't made it past summary dismissal).
    I read a lot of seppo law blogs, and I know where I'd rather live!

  80. NS  •  Sep 20, 2013 @5:14 am

    Just a thought to throw into the mix; perhaps the admin Robert Van Tuinen spoke with knew she was being set up, and went for it to provoke discussions like this. Often the best way to defeat policies you despise, but are forced to apply, is to apply the as firmly and strictly as possible, in situations where doing undermines it, or illustrates it's failings to those who have more power to change it than you.

    I'm not saying that is the case here, just that it is a possibility. Passive resistance can take many forms, and this is one I've had occasion to use in the past. I know it may seem detestable, the argument could be made that one should just ignore such a policy, and do what one feels is right, but that only addresses the instances one personally encounters. Bringing to light the failings of the policy itself, opening it up to review, revision, or repeal is better for addressing an issue across an entire organization or system. Doing so makes you look like the bad guy, often to all sides, but principles like free speech are more valuable than a single person's reputation…

  81. Devil's Advocate  •  Sep 20, 2013 @8:47 am

    @Clark

    The Constitution is not a check on individual actions; it is a check on government power.

    Arguably, Article III Section 3 is a check on individual actions.

  82. Ryan  •  Sep 20, 2013 @9:00 am

    I'm always of two minds about these sorts of examples.

    On the one hand, public spaces should always allow for unrestricted speech within the protected confines of the constitutional document of whatever country in question.

    But, on the other hand, colleges and universities (even public ones) are semi-private spaces. You can be escorted off-property for trespassing. The institution has a vested interest in maintaining a level of peace and order that allows their students and employees to go about their daily business without being subjected to obnoxious behaviour of others. I somehow don't think that by enshrining free speech in the US Constitution that the founding fathers intended for people to go shout virtually whatever they please wherever they choose, so long as it is public property.

    I find my problem with the Modesto policy is how rigid it is. Rather than a prescriptive approach, it would seem to me that a prohibitive one might be better – e.g. disruptive behaviour (as opposed to merely making ones point) and limiting specific spaces (e.g. certain parts of interior buildings, narrow points of congestion outside) where setting up is not allowed.

    But to say a person cannot stand where they please in a public area of a public campus and non-disruptively speak to a point they wish to make? That's wrong.

  83. Jack B.  •  Sep 20, 2013 @10:43 am

    Thus spake David:

    …while Korean film Old Boy, which is about forced revenge pedophilia and has a scene of an octopus being eaten alive…

    HOLY SPOILER ALERT, BATMAN!!!

  84. Pedant  •  Sep 20, 2013 @12:23 pm

    Sorry, naught-for-naught; you may like "beclown," but my Collins dictionary tells me that while archaic it means "to make a fool of (another), to make into a clown."

  85. I was Anonymous  •  Sep 20, 2013 @8:09 pm

    "Free Speech Zone"? Silly me, I thought the entire country was a Free Speech Zone. Not to mention that the JC is part of a governmental entity, and therefore subject to the most stringent scrutiny for free speech issues.

  86. mud man  •  Sep 21, 2013 @8:29 am

    The Constitution is not a check on individual actions; it is a check on government power.
    … Hmm, isn't the libertarian POV that the Constitution is what grants government its power?

    The Constitution granting power assumes that the government didn't have any before that. As opposed to Divine Right of Kings, where unlimited power was included in the box like extra batteries. That is, it's about fluffing up, not whittling down. Compare Magna Carta.

    Unfortunately, yeah, "we are entitled to do whatever we can't be stopped from doing" is the default in human affairs. The great flaw of Libertarianism as it seems to me: to the same extent persons are free, so are corporate bodies such as governments.

  87. Steve Brecher  •  Sep 21, 2013 @8:57 am

    I re-post my earlier question with newly-added emphasis

    Does the First Amendment's restrictions on Congressional legislation also restrict Modesto Junior College rulemaking?

    Ken commented that

    Modesto's public college status makes it a state actor subject to the First Amendment.

    How did we get from a prohibition of Congress making anti-speech legislation to the doctrine that no Federally-supported entity may suppress speech?

    In case it helps frame your answer, this comment is intended as a request for information rather than as an argument.

  88. JTM  •  Sep 21, 2013 @9:36 am

    @Steve Brecher

    The Supreme Court has determined that the 14th Amendment to the Constitution incorporated most of the Bill of Rights to state governments, and political subdivisions of state governments.

    http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

  89. Sami  •  Sep 21, 2013 @5:59 pm

    @Lizard: Censorship fuckups tend to get corrected. (See: Black Beauty having been banned in South Africa, until they found out it was about a horse.) While it's true that the classification system spent some time being reasonably stupid with regards to video games, that's getting repaired through a process of democracy.

    I am frankly in favour of hate speech laws, because reasonable discourse continues in this country, but there's all sorts of shit people can't and don't say.

    However, in my country, we don't have a government agency reading all of our e-mails, hardly anyone gets shot, ever, and we don't have one percent of the population in prison, and yet people can actually say basically anything they want to say so long as it's not actually trying to incite hate crimes, and we don't have "free speech zones" *anywhere*.

    The comparison of the theoretical, versus actual, positions of liberty and freedom in Australia versus the USA is kind of my entire point. Our rights are not carefully prescribed in the constitution, and therefore, no-one gets to set out to try and limit our rights to ONLY those that are Constitutionally guaranteed.

  90. Settles  •  Sep 23, 2013 @2:15 am

    Do I need to wear my star when I am in "that little cement area", Herr Kommandant?

  91. TRX  •  Sep 27, 2013 @3:46 pm

    > However, in my country, we don't have a government
    > agency reading all of our e-mails,

    That's okay, the NSA reads them anyway.

7 Trackbacks